Acts and Regulations

Rule-49 - OFFER TO SETTLE

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Full text
Current to 1 January 2024
SETTING ACTIONS DOWN FOR TRIAL
RULE 49
OFFER TO SETTLE
49.01Definitions
In this rule,
defendant includes respondent;
plaintiff includes applicant.
49.02Where Available
(1)A party may serve upon an adverse party an Offer to Settle (Form 49A) any claim between them in the proceeding and, where there is more than one claim between them, to settle one or more of them, on the terms therein specified.
(2)Where a claim is for a debt or for damages, a party may serve upon an adverse party an offer to settle in the form of an offer to accept or suffer a default judgment for an amount specified in the offer.
92-3
49.03Time for Making Offer
An offer to settle may be made at any time before the commencement of the trial or hearing; but, where an offer to settle is made less than 10 days before the day on which the trial or hearing is commenced, the costs consequences prescribed by this rule shall not apply unless the offer to settle is accepted before the commencement of the trial or hearing.
49.04When Offer to Settle may be Revoked
(1)A party may revoke an offer to settle at any time before acceptance by serving upon the party to whom the offer was made a notice of revocation (Form 49B).
(2)Where an offer to settle stipulates a time for acceptance and is not accepted within that time, it shall be deemed to have been revoked.
(3)The costs consequences prescribed by this rule shall not apply to an offer to settle which has been revoked before the commencement of the trial or hearing.
49.05Effect of Offer
(1)An offer to settle shall be deemed to be an offer of compromise made without prejudice, and shall not be taken as an admission of liability, unless the offer to settle provides otherwise.
(2)A statement of the fact that an offer to settle has been made shall not be contained in the pleadings, and a communication of that fact shall not be made to the court on the trial or hearing of the proceeding until after all questions of liability and the relief to be granted have been decided.
49.06Acceptance of Offer
Where an offer to settle has been served, the party to whom the offer is made may accept it by serving notice of acceptance (Form 49C) on the party who made the offer.
49.07Time for Acceptance
Notice of acceptance may be delivered at any time before the commencement of the trial or hearing unless, in the meantime, the offer has been revoked.
49.08Effect of Acceptance
(0.1)Where an offer to accept or suffer a default judgment referred to in Rule 49.02(2) is accepted, the clerk may, upon the filing of the proof of the making and acceptance of the offer, enter judgment for the amount specified in the offer and, unless the offer stipulates that the judgment is to be without costs,
(a) for any amount for costs stipulated in the offer, or
(b) for costs assessed in accordance with Tariff “C” of Rule 59.
(1)Where a party to an accepted offer to settle fails to comply with the terms thereof, the other party may, subject to the provisions of paragraph (2), apply to the court
(a) for judgment in the terms of the accepted offer, or
(b) where the defaulting party is a plaintiff, to have his proceeding dismissed or, where the defaulting party is a defendant, to have his defence to the proceeding struck out.
(2)Where the accepted offer to settle is the settlement or compromise of a claim made by or on behalf of a person under disability, the provisions of paragraph (0.1) or (1) shall not apply until the settlement or compromise has been approved as provided in Rule 7.06.
(3)Where the accepted offer is silent as to costs, and the offer was made by the defendant and accepted by the plaintiff, the plaintiff may apply for assessment of his party and party costs of the proceeding to the date when he was served with the offer to settle and, unless the defendant pays those costs within 7 days after assessment, enforce the certificate of assessment in the same manner as a judgment.
(4)Where the accepted offer is silent as to costs, and the offer was made by the plaintiff and accepted by the defendant, the plaintiff may apply for assessment of his party and party costs of the proceeding to the date he was served with the notice of acceptance and, unless the defendant pays those costs within 7 days after assessment, enforce the certificate of assessment in the same manner as a judgment.
92-3; 2019-33
49.09Effect of Failure to Accept
(1)Unless ordered otherwise, where an offer to settle was made by a plaintiff at least 10 days before commencement of the trial or hearing of the proceeding and was not revoked prior to commencement of the trial or hearing, and where that plaintiff obtains a judgment as favorable or more favorable than the terms of the offer to settle, then he shall be entitled to 1.5 times the costs fixed pursuant to Rule 59.08(1).
(2)Unless ordered otherwise, where an offer to settle was made by a defendant at least 10 days before commencement of the trial or hearing of the proceeding and was not revoked prior to commencement of the trial or hearing, and where the plaintiff fails to obtain a judgment more favorable than the terms of the offer to settle, the plaintiff shall be entitled only to party and party costs to the date of service of the offer to settle and the defendant shall be entitled to party and party costs from the date of such service.
49.10Multiple Defendants
Where two or more defendants are jointly, or jointly and severally, liable to the plaintiff in respect of a particular claim or claims, the costs consequences prescribed by Rule 49.09 shall not apply to an offer to settle, unless,
(a) in the case of an offer made by the plaintiff, the offer is made to all such defendants, and is an offer to settle such claim or claims as against all such defendants, or
(b) in the case of an offer made to the plaintiff, the offer is made by all such defendants and is an offer to settle such claim or claims against all such defendants and, by the terms of the offer, they are made jointly and severally liable to the plaintiff for the whole amount of the offer.
49.11Discretion of Court
Notwithstanding the provisions of this rule, the court, in exercising its discretion as to costs, may take into account any offer to settle made in writing, the date the offer to settle was served and the terms thereof.
49.12Offer to Contribute
(1)Where two or more defendants are jointly, or jointly and severally, liable to the plaintiff, one defendant may serve on another defendant an Offer to Contribute (Form 49D) toward a settlement.
(2)The provisions of Rules 49.05 and 49.11 apply to an offer to contribute as if it were an offer to settle.
49.13Application to Counterclaims, Cross-Claims, or Third Party Claims and Appeals
This rule applies, with any necessary modification, to a counterclaim, cross-claim or third party claim and an appeal.